Employment Rights Bill

• One of the key changes, as expected, is the removal of the two year qualifying period to bring a claim for ordinary unfair dismissal. The Government has announced that this will be subject to a statutory probation period, which the Government will consult on. The Government’s preference is for the probationary period to last 9 months. We anticipate that during this probationary period it will be easier for employers to dismiss employees if they do not meet the standards required for the role. Furthermore, the right to claim unfair dismissal will not be possible should a signed contract be withdrawn ahead of the start date.
• Additional ‘day 1 rights’ have also been introduced such as entitlement to paternity leave, unpaid parental leave and bereavement leave. Bereavement leave will be extended but it is not clear what the nature of the relationship between the employee and the deceased will need to be to qualify. Bereavement leave for loss of a child will remain at two weeks but will be one week for other bereavements.
• The right to request flexible working will now require employers to provide grounds for refusal of an application for flexible working and explain why they believe it is unreasonable to grant. There is little change here and the penalty of 8 weeks pay for failure to do so remains the same.
• In terms of zero-hour contracts, employers will be obliged to offer ‘guaranteed hours contracts’ although it’s unclear what form the reference period of hours worked will take. Workers will also acquire a right to reasonable notice of a shift and reasonable notice of cancellation of a shift. There is a lot of detail in this provision which needs unpicking.
• Further to separate legislation due to come into force on 26 October 2024, which will introduce a positive duty for employers to take reasonable steps to prevent sexual harassment in the workplace, the bill proposes to broaden this to include a duty to take all reasonable steps to prevent sexual harassment of its staff by third parties. Liability for third parties is a big sea change.
• On fire and re-hire, in order to address one-sided flexibility the bill will make it automatically unfair to dismiss an employee for refusing changes to T&Cs or to rehire an employee under new terms but with substantially the same duties. There will be a high threshold defence, that being the business is on the brink of collapse.

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Take Me There

• On the trigger for collective consultation on redundancies (20 or more), the bill proposes to reverse case law. Where redundancies are proposed, the calculation of how many redundancies will be looked at across the whole business and not, as it is now, at different locations and/or individual entities. This will increase the number of circumstances where collective redundancy consultation will need to take place.
• Access to sick pay will increase as it will be paid on the first day of absence, removing the ‘waiting period’ currently in place. Also the lower earning threshold will be removed. Statutory sick pay will be a percentage of pay set by the Secretary of State.
• Further proposals include
  • establishing the Fair Work Agency;
  • bringing forward measure to modernise Trade Union laws;
  • drafting a Fair Pay Agreement in adult social care, re-establishing the School Support Staff Negotiating Body, and re-instating a two-tier code for procurement;
  • introducing gender and menopause action plans for those employing 250+; and
  • strengthening rights for pregnant workers.

The Government may have delivered on its promise to ‘introduce’ new legislation within 100 days, however it does not propose to start consulting on the reforms until 2025, and has stated that reforms of unfair dismissal will not come into force before Autumn 2026. This is positive news for employers, as it gives plenty of breathing space to understand the impact of these reforms before they take place.